In wake of Ray Tomlin firing, city considers changing board of variance bylaw

Vancouver development consultant Jim Lehto sometimes refers to the board of variance as “the people’s court”. It’s because anyone who disagrees with a zoning decision of the City of Vancouver’s planning department may file an appeal to the five-member board, which is appointed by council.

“You can come in the room and pour your heart out,” Lehto told the Georgia Straight in a recent phone interview. “The board can say, ”˜We allow the appeal’ or ”˜We don’t allow the appeal’ or ”˜We want these conditions.’ It’s very fluid and wide-ranging.”

However, Lehto, a former Vancouver city planner, said the freewheeling appeal system could be in jeopardy as a result of proposed amendments to the board-of-variance bylaw. City manager Penny Ballem recommended approval of the amendments in a report that went to council’s planning and environment committee on July 9.

After eight speakers, including Lehto, raised objections, Coun. Raymond Louie introduced a motion to delay dealing with this issue until October. Louie’s motion, which was approved by council, also asked staff to conduct a public consultation on whether or not the board should accept third-party appeals.

In Lehto’s opinion, the proposed changes in the staff report could lead to a “very restricted conversation” between appellants and the board. He also suggested that the new bylaw could narrow the board’s options in overruling decisions by the planning department. “This institution is being sidetracked either willfully or ignorantly,” he claimed.

According to the staff report, appellants “frequently” mention issues that they didn’t write on forms before the hearings. “This can be very problematic for staff and others who wish to make submissions to the Board because they are taken by surprise by these new grounds of appeal,” the staff report states. Under the proposed amendments, appellants would have to record in writing all grounds or arguments that they wish to present.

Lehto said the board recently introduced a revised notice-of-appeals form, which constrained the arguments that appellants could raise before the board. “This was a profound change in the administration of appeals,” he said, noting that the board has gone back to the old form. “To me, that horse had come out of the gate too fast because council was still presumably considering the amendments to the bylaw”¦and what could and could not be heard at the board meeting.”

The existing bylaw stipulates the board can reverse or uphold a planning-department dictate “either in whole or in part or may modify such decision as appears warranted by the facts disclosed at the hearing”. In simple terms, this means the board can attach conditions for approval.

This language has disappeared from the proposed new bylaw, even though this power is explicitly acknowledged in the Vancouver Charter. Lehto called this a “sin by omission”, which could lead board members to not modify decisions by the planning department.

The proposed changes come at a tumultuous time in the board’s history. On September 24, the Straight reported that one member, Ray Tomlin, claimed that he had been hauled into Ballem’s office and told to resign. This came after he wrote a 10-page memorandum to Ballem on September 11 outlining several major concerns about how the board was conducting its affairs. He specifically mentioned the board’s reluctance to reinstate third-party appeals, the sudden appearance of a new appeals form, and board chair Tony Tang’s willingness to hold meetings in private, allegedly in violation of the Vancouver Charter and other provincial legislation.

The same day the article appeared, city council fired Tomlin. Ballem and Tang have refused the Straight’s requests for interviews.

Lehto didn’t want to comment on Tomlin’s memorandum and instead focused on the proposed bylaw. He noted that it is coming forward at a time when there are many “rookie” members hearing appeals.

“We hope that the board survives intact as an institution,” Lehto said, quickly adding that this is “a very sensitive moment for the board of variance and for council”.

2 Comments

Joan Aiello

Oct 2, 2009 at 9:56pm

Maybe it's time for the city council to listen to Ray Tomlin's concerns regarding he proposed bylaws instead of those "rookie" members of the Board! What experience do they have in making decisions of such an important matter.

Anita Romaniuk

Oct 5, 2009 at 1:46am

I hope that Council will not put in additional restrictions on submissions to the Board of Variance. It is the "little guy" - who doesn't have access to expensive consultants and lawyers - who will be hurt by this. It is not unrealistic for someone to come up with additional information after filing the appeal but before the BoV actually hears it. If necessary, and staff and the board require a "second look" after new information has been presented at a hearing, they can put a decision over by one week.